NAZIRKHAN MOHAMMED Vs. DAMODHAR S/O MAROTI PATRE

JUDGEMENT

(1.) THIS is an Appeal by the original defendant No. 1 challenging the judgment and decree passed by the 2nd Additional District Judge, Bhandara in Regular Civil Appeal No. 52 of 1984 on 29th August, 1989 confirming the judgment and decree passed by the Joint Civil Judge (Jr. Dn.), Bhandara in Regular Civil Suit No. 37 of 1980, dated 13th June, 1984, whereunder the appellant was directed to deliver possession of the suit house to the plaintiff and further enquiry into mesne profit from the date of suit till delivery of possession of the house under Order XX, Rule 12 of the Code of Civil Procedure.

(2.) THE original plaintiff Maroti Patre had filed the aforesaid suit against the appellant and one Shriram Sakharam Kantode (defendant No. 2) on the averments made in the plaint as follows :

(3.) THE appellant -original defendant No. 1 had raised a point in that appeal that Akbarkhan was the legal heir entitled to succeed Rahim Khan and that, Sabdarkhan has no right, title or interest in it. It is the case of plaintiff that defendant was bound by his admissions and he is estopped from denying the title of said Akbarkhan inasmuch as in appeal his contention was that Akbarkhan was the only legal heir of deceased Rahim Khan after death of Sabdarkhan. The appellants in the said appeal presented an application to the Court to withdraw the suit with permission to file fresh suit on 19th September, 1979. Their application was allowed on the condition that they should first pay or deposit in the Court the costs of appeal for being paid to defendant No. 1. It was also ordered that since the suit filed by the plaintiff was not to exist in view of the order made as above, the decree of dismissal of the suit, recorded in Regular Civil Suit No. 187 of 1994, stood set aside. In fact, It was plaintiff who deposited an amount of Rs. 75/ - towards the costs as awarded by the Appellate Court. Thereafter, the plaintiff has filed the aforesaid suit for possession of the suit house against the defendants in his capacity as purchaser of the suit property from deceased Akbarkhan, who was left as a legal heir of deceased Rahim Khan after death of Sabdarkhan.